By Helena Tavares Erickson

Law360 (April 29, 2020, 5:44 PM EDT) --

Helena Tavares Erickson

COVID-19 has upended every segment of the legal community, closed courts and changed the way that disputes are resolved, but no community has been as flexible in responding to this crisis as the alternative dispute resolution, or ADR, community — which has largely seamlessly transferred operations to online platforms and continued business as usual.

At the same time, the advent of remote video arbitrations and mediations has created a need for guidance and best practices. To assist in filling this gap, the International Institute for Conflict Prevention and Resolution, or CPR, a global nonprofit organization that advances dispute prevention and resolution practices and solutions, has created a new annotated model procedural order for remote video arbitration proceedings that can be adopted and adapted by arbitrators in such proceedings. 

To tackle these issues, CPR assembled an international task force of arbitrators, in-house counsel, outside counsel and institutional staff.

The new model order puts into one, user-friendly document the best practices that the arbitration community needs to navigate video hearings in conducting a very real, but remote, arbitration proceeding in a fair, effective and enforceable manner.

Specifically, the model order addresses the selection of videoconferencing platforms; best practices for preparatory activities; requirements during the proceeding; complexities that may arise with respect to the presentation of documents and witness testimony; and issues respecting the eventual enforceability of an award resulting from a remote video arbitration.

While creating the model order, the task force discussed at length various videoconferencing platforms that were being used by neutrals around the globe. The consensus was that the key to selecting an appropriate platform for an individual matter was ensuring both appropriate functionality for things like breakout rooms while also focusing on data security and privacy.

The model order refers to various international protocols and guidelines relating to data security and privacy, to which arbitrators may refer in making their selections, including those from the International Council for Commercial Arbitration, the New York City Bar Association and the International Bar Association.[1]

Included in the model order is a provision allowing the parties and tribunal to select a remote video support provider to assist them with technical functions if necessary. The order further addresses and provides guidance with respect to the technical aspects of control of the proceeding.

One important feature of the model order is its directive that each participant in a proceeding test its equipment and its compatibility with the chosen platform prior to the actual proceeding and prior to a group test. Several arbitrators reported that such tests were essential in ensuring smooth functioning of the real hearing.

Another feature of the model order is its consideration of the technical complexities of controlling the participants' communications during witness testimony. Numerous practitioners have raised issues as to the potential for the abuse of chat functions and impermissible witness coaching during remote proceedings.

Several practical suggestions are made, such as potentially disabling chat functions and the panning of the room in which the witness is located at random times during examination. Arbitrators and counsel are encouraged to require a witness to certify that he or she is not being coached and has no access to chat, text or other methods of communication during testimony.

The model order also gives guidance on using the platform's recording functionality for preserving testimony and how and when it may be appropriate.

Finally, recognizing that virtual reality mimics the real world, the order contemplates back-up plans and emergency notifications if a participant loses its connection to the hearing. The task force participants discussed but elected not to include exhortations regarding a dress code, as some courts have done, as most ADR practitioners need no reminder of the dignity of a proceeding and will also know how to advise their clients accordingly.

The model order devotes one section to exhibits and documents at a hearing. The traditional tabbed binders of exhibits may not be possible, practicable or advisable in the time of COVID-19, and it is likely that exhibits will be in electronic form. Therefore, the order addresses the potential need for a second screen on which to display electronic documents under review while a witness is testifying.

If the documents are to be provided to a witness in hard copy, the model order suggests their prior delivery in a sealed envelope or other receptacle that is to be opened only in view of the other participants at the actual hearing. The order also contemplates the increased usage of written witness testimony in lieu of direct examination as is common in international arbitration proceedings in order to make the proceedings more efficient.

A current concern of many practitioners and their clients is whether an award that results from remote video arbitration proceedings is enforceable if a party preserved its objections to proceeding remotely. Virtually all arbitration providers interpret their rules to allow a tribunal or sole arbitrator to make the decision to proceed with remote video proceedings if they feel such proceedings are appropriate in the circumstances, but there is currently no body of case law addressing whether a resulting award is enforceable if the tribunal so orders over the objection of a party.

Applicable law may permit vacatur for a refusal to postpone a hearing, though likely only where the denial of a postponement jeopardizes the fundamental fairness of the proceeding.[2] Most attorneys in the ADR community believe that courts, which themselves are conducting remote proceedings, will only decline to enforce an award if the remote proceeding was in fact unfair.

The model order provides language that a tribunal may use to show that, having considered the issue of potential material prejudice to a party, it has determined that "the interests in efficiency, promptness and fairness of the arbitration" are better served by proceeding remotely.

Over the next few months, the legal community will test the limits and opportunities presented by remote video arbitrations. While the results of this experiment are still unknown, it is certain that the landscape of arbitration will be fundamentally altered. An entire cadre of arbitrators and lawyers will have learned, if not perfected, new skills, and arbitration will have once again proven itself as the flexible and adaptable go-to dispute resolution choice for most commercial disputes.

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Helena Tavares Erickson is senior vice president of dispute resolution services at the International Institute for Conflict Prevention and Resolution. 

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Documents include the ICCA-NYC Bar-CPR Cybersecurity Protocol for International Arbitration (2020 Edition), the IBA Cybersecurity Guidelines (2018) and, with respect to personal identifying information, the ICCA-IBA Roadmap to Data Protection in International Arbitration (2020 Consultation Draft).

[2] See, e.g., U.S. Federal Arbitration Act § 10(a)(3); Tempo Shain Corp. v. Bertek, Inc. , 120 F.3d 16 (2d Cir 1997); Bisnoff v. King , 154 F.Supp. 2d 630 (S.D.N.Y. 2001)(observing that arbitral tribunal's refusal to adjourn hearing to accommodate an unavailable witness would not warrant vacatur of award where tribunal offered to accept video testimony);  Eaton Partners, LLC v. Azimuth Capital Management IV, Ltd., No. 18 Civ. 11112 (ER) (Sept. 24, 2019) (approving Bisnoff in dictum).

The author is aware of one pandemic-generated decision of the Federal Court of Australia.  There the court rejected the defendant's request to adjourn an anticipated six-week trial of a consumer class action and ordered that the trial be conducted by remote video facilities.  The court acknowledged that the remote video format was not desirable but concluded that the court could ensure the fairness of the proceeding and that the interests in avoiding additional delay overcame the disadvantages inherent in the format.  Capic v. Ford Motor Company of Australia, Ltd., No. NSD 724 (2016), April 16, 2020, available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0486. 

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